Act of transposition of the EU Directive 2018/957 of June 28, 2018: Government Ordinance no. 2019-116 of February 20, 2019 (published in the French Official Gazette of February 21, 2019), the provisions of which will enter into force on 30 July 2020.
Under current French legislation, any employer established outside of France, posting employees in France, must comply with certain ‘core’ elements of French law for these posted employees, as specified by statutory provisions. These ‘core’ elements take into account both statutory provisions and provisions of national sector-wide CBAs, and those related to employees of companies of the same sector of activity established in France.
From 30 July 2020, an explicit reference to the notion of ‘equal treatment’ has been introduced in the French Labour Code, in a way which significantly strengthens the employers’ duty in the context of the posting of their employees in France. Instead of having to (merely) ‘comply with’ these ‘core’ elements of French law for posted employees, the employers concerned (i.e. those established outside France, posting employees to France), will now have to ‘guarantee’ each posted employee ‘equal treatment’ with locally employed personnel, under the same conditions.
From 30 July 2020, the ‘core’ of French law described above was extended in two ways:
Under previous French legislation, employers must comply with the ‘applicable minimum wage’ as well as ‘statutory and CBA-based salary additions’ for posted employees; from 30 July 2020 they must now guarantee each posted employee the ‘minimum or basic wage, as well as all other benefits and accessories paid, directly or indirectly, in cash or in kind, by the employer to the employee by reason of his/her employment.’ From 30 July 2020 employers concerned must guarantee each posted employee equal treatment (as described above) in relation to any kind of employee compensation, whatever the nature (i.e. fixed or variable, in cash or in kind, etc.).Transport, meals and accommodation expenses: Since 30 July 2020, certain business expenses are also explicitly added to the list of ‘core’ elements of French law to which the equal treatment rule applies, namely ‘transport, meals and accommodation expenses’ borne by the posted employee ‘in the context of the performance of his/her duties’ and which are ‘of a specific nature inherent in his/her function or duties.’
Since 30 July 2020, where an employee has been seconded in France for more than 12 months (taking into account, where appropriate, the period worked before 30 July 2020), s/he is automatically entitled and subject, from the 13th month of secondment in France, to all provisions of the French Labour Code, except the following: provisions of the French Labour Code regarding hiring employees (which govern, mainly, the pre-hiring declaration, recruitment processes, and trial periods); provisions of the French Labour Code regarding modification of the contract on economic grounds, transfer or termination of the employment agreement (this includes rules governing dismissals, mutual terminations, and resignation on the employee’s part); the secured voluntary mobility scheme (‘mobilité volontaire sécurisée’); provisions of the French Labour Code regarding fixed-term employment agreements, including all similar contracts (e.g. building site contracts, mission-based contracts, etc.).
Where the specifics of the posting situation justifies it, the 12-month period can be extended to 18 months, upon submission of a declaration with reasons (the form and content of which will be determined by a government decree to be published) by the employer to the relevant administrative authority, before the end of the 12-month period, taking into account, as appropriate, the period worked before 30 July 2020.
In the event of a replacement of a posted employee by another posted employee in the same position, the 12-month period referred to above will be reached when the cumulative period of secondment of successive employees in the same position is equal to 12 months.
The rules that apply to a temporary work agency established outside of France seconds employees on French territory have been modified by the French transposition ordinance as follows – User company established outside France (mandatory declaration replaced by a simple information duty).
Under the previous legislation, for indirect postings of employees by a temporary work agency established outside of France, the user company was required to send a declaration to the French Labour Inspection, before the beginning of the posting, stating that the temporary work agency was aware of the posting of its employees on French territory. From 30 July 2020, this mandatory declaration has been replaced by an information duty. The user company established outside of France now only has to inform the temporary work agency, before the beginning of the posting of: the fact that its employees are posted in France; and the ‘core’ rules of French law applicable to them (the exact content of this information is to be determined by a ministerial ruling that is still to be published).The user company only has to demonstrate by any means that it complied with this obligation in the event of an inspection by the French Labour Inspection.
User company established in France (new information duty) in addition to the above, a new information duty is introduced under French law for user companies established in France. Where the user company is established in France, it has the obligation (in the situation described above), to inform the temporary work agency established outside of France of the salary conditions applicable to its employees during their posting in France.
In the event of a breach of the obligations described above, the employer is liable for an administrative fine of up to EUR 4,000 per posted employee, increased to up to EUR 8,000 per posted employee in the event of a repetition within two years from the date of notification of the first fine, up to a maximum fine of EUR 500 000.
A sanction applies to a user established outside of France in the event of a failure on its part to inform the temporary work agency of the posting of its employees in France, and the rules applicable to them; and to a user company established in France in the event of failure on its part to inform the temporary work agency of the salary conditions applicable to its employees during their posting in France.
The French transposition ordinance does not provide any specific ‘mitigating circumstances’, but states that the administrative authority may take into account the employer’s ‘good faith’ to determine the amount of the fine.